Sunday, 26 November 2017

The EU Withdrawal Bill is currently being eased through the bowels of Westminster, digested by the Houses of Commons and Lords, inched forward by the peristalsis of readings, committees and amendments. The question of where repatriated powers should lie and how this impacts the devolution settlements is clearly going to be a cause of irritation as the Bill forms. Nobody expects this to be a smooth passage.

This blog is a layman’s attempt to understand some of the issues involved and to think aloud about whether complaints of a “Westminster power grab” are justified or not. The fact that I think Brexit itself is an act of great folly, I will place to one side.

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Those accusing the UK Government of an attempted power grab1 argue that powers being repatriated from the EU should be passed directly to the devolved authorities if they relate to existing devolved competences. On the surface this may appear a reasonable enough stance, but it’s worth making two simple observations.

The powers in question are powers that have never been within the legislative competence of the devolved authorities (i.e. in practice they have never been devolved)

The powers in question are (in general) powers used to maintain the integrity of the EU Single Market so - by logical extension - they’re powers that relate to maintaining the integrity of the UK single market

The first of these points is reinforced by the wording of the Withdrawal Bill itself, which takes pains to specify that anything that is within the legislative competence of the Scottish parliament or Welsh Assembly before Brexit, remains so after2.

This is all because devolution occurred while the UK was in the EU. The context was that EU (and by implication UK) single market integrity was assured by the devolved authorities' obligations to comply with EU law. Brexit takes away that obligation, so the context dramatically changes; new legislation is needed to assure the integrity of the UK single market post-Brexit.

It can be argued that when "fully devolving" certain competences while expecting to remain within the EU, in effect the UK Government reserved some powers to exercise in concert with other EU member states through the Council of Ministers. The nub of the issue here is the use of the words “in effect” in the previous sentence.

To illustrate: the Scottish Devolution Settlement sets out matters which are reserved to the UK parliament and "all other issues are deemed to be devolved". With particular relevance to the EU Withdrawal Bill, the implication is that current "fully devolved" competences include: Agriculture, Forestry & Fisheries; the Environment; Justice & Policing; Trade & Industry; Economic Development.

This means that a large number of the powers* being repatriated relate to competences that are "deemed to be devolved". Depending on your perspective, this is either a legal technicality or an important point of principle.

* I detail the specific powers at the foot of this blog- to cover here would be to distract from the core argument.

The “legal technicality” argument points to the fact that the Welsh Devolution Settlement is worded differently, defining instead what is devolved and Stating that "any area not listed [..] is non-devolved" -yet surely the spirit of devolution was the same in both cases? This argument also suggests that legislators did not consider the possibility that the UK would leave the EU when drafting these settlements, or at least failed to think through the consequences of leaving when drafting Scotland's.

Both arguments have merit, but a sensible approach would surely be to look at what in practice we want to achieve rather than being constrained by where we start from - particularly if we accept the argument that where we start from is in large part due to previous legislators’ failure to consider the possibility that the UK wouldn’t perpetually be a member of the EU. To put it another way: do the repatriated EU laws fall into the category of being required to be reserved?

The powers being repatriated are (in general) powers that exist with the EU to enable the creation and enforcement of frameworks that guarantee the integrity of the EU single market. For the very reason that that these powers are held at an EU level now, the default assumption must surely be that they are required at a UK level to guarantee the integrity of the UK single market.

Of course in theory these powers don’t need to be held by the UK Government for UK-wide frameworks to be agreed by the constituent nations – but ”in theory” that same argument could be applied to the EU member states. The political reality for the EU has been that to create and enforce these frameworks has required reservation of certain powers.

The UK is clearly a different beast from the EU, and some argue that these frameworks should be able to be created by mutual agreement between the constituent nations, that there's a big difference between UK-wide frameworks being imposed and those frameworks being agreed. Of course this is true, but the process of agreement is one of negotiation - and few would argue that the UK Government isn't overloaded with negotiating tasks right now. In this context, any negotiation that can be sensibly deferred surely should be - this isn't the time for the UK to be playing "constitutional and legislative poker games."3

Context matters here. With Scotland controlled by an SNP government who make no secret of their desire to break up the UK, it seems optimistic in the extreme to assume they would negotiate in good faith to preserve the integrity of UK single market, rather than opportunistically seek to further their cause of separation.

From here forwards I'm going to suggest we accept a simple principle: the manner in which we handle repatriated powers should be the simplest option that guarantees the integrity of the UK single market.

The first point about simplicity is one of pragmatism. To (mis)apply Occam’s Razor4: the simplest answer is normally the right one. The scale and complexity of the EU Withdrawal Bill is unprecedented; wherever simple solutions can be found they should be gratefully seized.

So as a first step we might assume that all powers repatriated from the EU should reside with the UK Government, at least in transition. This seems simple and one might argue that it guarantees the integrity of the UK single market. Except of course it doesn’t if it creates cause for grievance that can justifiably be seized upon by nationalists and used as a catalyst for, say, another Scottish independence referendum.

The source of this potential grievance lies in the fact that to legislate to reserve these repatriated powers to the UK requires the legislative consent of the devolved authorities (or use of the controversial Henry VIII clause).

With the rhetoric of “Westminster power grab” being used already, we can be sure that any legislation that could be construed as “re-reservation of powers" will be exploited for grievance purposes and legislative consent withheld.

But if we trust our ability to have an informed national debate, the question that matters is surely whether there is a justified cause for grievance.

Given that the powers in question have never been exercised by the devolved nations and are pretty much by definition powers required to maintain the integrity of the UK single market, it would seem difficult to rationally argue against the simple exponent of, by default, shifting the powers (initially at least) to Westminster.

If we consider the avowedly pro-EU SNP's position: how can they credibly argue that they're in favour of these powers being reserved to Brussels while we're in the EU, but object to those self-same powers being reserved to Westminster when we're not? After all, when it comes to constraints applied by EU law today, the devolved authorities have no direct link to the Council of Ministers - the Scottish Government has far more influence at Westminster than it does at Brussels, so its influence would grow even if these powers "only" shift to being reserved at a UK level.

It seems that the SNP's position can simply be summarised as "Brussels good, Westminster bad". This mindset is neatly illustrated by an exchange I had on Twitter with Patrick Harvie (leader of the Scottish Greens) in which he made it clear that the difference between Brussels and Westminster is that, when it comes to Westminster, he doesn't trust "them";

** Clarification [27/11/2017]**

Although I include the complete text of the tweet above (and link to the tweet in the quoted text above the image), Patrick has asked me to point out that his final tweet did also include a link to this article > Supreme court orders UK to draw up air pollution cleanup plan, so he feels I am unfairly implying he is demonstrating unjustfied prejudice in the way I have presented this. I'm happy to clarify

** Ends **

From the Scotland Act 2016 to the current proposed revisions to the Welsh Devolution Settlement, the UK government has shown its willingness to embrace and continue the process of furthering devolution. In this context, the fact that simple and pragmatic solutions are proposed during the (already hugely disruptive) process of withdrawal from the EU shouldn't be interpreted as evidence of malign intent.

If anybody here is attempting a "power grab", it would seem to be those devolved administrations exploiting a legal technicality to gain powers they have never previously exercised.

***

Appendix: The Specific Powers in Question

This blog has referred only to powers in a general sense in an attempt to avoid becoming bogged down in detail. The detail of the specific powers in question is informative, however, at it helps us understand how and why these powers matter and why they were reserved to the EU in the first place.

According to a list published by Nicola Sturgeon and Carwyn Jones, there are 111 powers that are "vulnerable to a Brexit Power Grab". It's a long list but we can group many of them together to help us judge their importance to retaining the integrity of the UK single market. I've relegated the actual list to a footnote5.

As many as 29 could be said to broadly relate to Environmental Protection. If part of the UK has less stringent environmental standards than another, it’s likely to be cheaper to manufacture and produce there (because complying with environmental regulation carries a cost), so “unfair” economic advantage would be conferred on that area. “Unfair” because the resulting pollution or environmental damage would, of course, not respect any borders.

At least 16 relate to agriculture, fisheries and food. These include issues relating to standards of animal welfare, approaches to disease control and regulations on pesticide use. To allow free movement of livestock and fair competition between producers, it’s essential that these issues are governed by common frameworks. At least5 of these relate to food standards and labelling: conformation with these standards places a burden on businesses or places constraints on their marketing - so if we’re to maintain a level playing-field and ensure free-movement of goods, then common UK rules have to be agreed and adhered to.

Fisheries is just one of these, but it’s a big one. Anybody who cares about the sustainability of fish stocks recognises that fishing waters around these islands (and of course more widely) need to be carefully managed. The imposition of fishing quotas is the short-term price we pay for long-term sustainability. To allow a structure where (say) English fishermen were subject to more stringent quotas than their Scottish competitors would be a clear “single market” failure.

Just one relates to state aid, but again it’s a big one. As long as we’re committed to pooling & sharing resources, it's surely logical that state aid rules are consistently applied within the UK.

There are a large number (36?) that can be grouped under the broad category of Justice & Home Affairs. I confess to have tired by this stage and to lack enough knowledge of these topics to offer insightful comment - but to the layman's eye it does seem that some of these could be devolved without without causing obvious risk to the UK single market.

At this stage I start to flag. It looks to me like maybe 7relate todata sharing and information security, 7tomedical and scientific matters, 3 totransport, and 7"others" which include energy related issues. I'll leave it to others more informed than me to comment on the necessity or not for these to be exercised at a UK-level

Finally, there are 5 which relate to EU institutions - depending on the nature of the final Brexit settlement these presumably become redundant, get replaced by UK equivalent bodies or we choose to continue to co-operate with the relevant EU Agencies

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This blog has been greatly informed by the following, each of which I strongly recommend;

On the case for all repatriated powers in areas of devolved competence to go directly to the devolved authorities:"Brexit & The Territorial Constitution" - Prof Richard Rawlings for The Constitution Society

The balanced Case, including arguments from "both sides":"Brexit: Devolution" - House of Lords European Union Committee

"An act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Scottish Parliament. A provision is outside the competence so far as [...] it is incompatible with [..] EU Law"

The Bill proposes this is amended to effectively replace EU Law with "retained EU Law". The actual clause wording becomes:

"An act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Scottish Parliament. A provision is outside the competence so far as [...] it is in breach of the restriction subsection 4(A)"

where subsection 4(A) effectively reads:

"An Act of the Scottish Parliament cannot modify [..] retained EU Law" [unless] "the modification would, immediately before exit day, have been within the competence of the Scottish Parliament"

3. "Enough has been said to highlight the importance of the UK single market dimension for the balance of power between the UK Government and the devolved administrations, as well as the scope, as time ticks by, for high stakes constitutional and legislative poker games."Brexit & Devolution (page 12) - Professor Rick Rawlings

4. Occam’s Razor applies to explaining phenomenon rather than establishing strategies, but I think the parallel is reasonable here

5. The Powers in Question

A breakdown of the 111 powers as identified by the SNP as being those which "intersect with the devolution settlement in Scotland" [Numbers given are those used by the SNP when publishing the list, groupings are merely my own "rough & ready" attempt]

Sunday, 12 November 2017

Last weekend I took a trip "home" to Islay, the Inner Hebridean island where I spent my formative years. My mum - with whom I have an at best strained relationship - now lives in a care home on the neighbouring island of Jura.

It was an emotional few days, during which I thought a great deal about identity and sense of self.

SCENE 1: Care Home, Jura

An old woman sits in a chair, a rug across her lap. On the table beside her sits a radio, permanently tuned to radio 4. Beside the radio sits a large-buttoned phone, a glass of water, a glass of milk and a bowl of Smarties. The chair is backed against the wall, angled towards the room’s single window.

Sitting facing her on straight-backed chairs are two people: her son and his wife

The old woman’s face contorts as she toothlessly sucks on a Smartie. Behind the gurning, her expression is one of sad resignation. Her rheumy eyes stare into the middle distance as she shakily reaches for another sweet, her hand sweeping until it hits the side of the bowl. It’s clear she’s practically blind.

There’s a lengthy silence. After two hours of talking – with the old woman offering very few words in return - the couple have run out of things to say.

Eventually the younger woman speaks;

- do you ever speak with the other residents?

- [dismissively] no

- I’m sure they’ve all got interesting stories to tell

- [scoffs]

Another long pause. The old woman’s right hand sweeps and fumbles for another Smartie. The couple catch each other’s eyes. He shrugs. Hiding her exasperation well, but not quite fully, she tries again;

- that chap in the wheelchair seems nice, he was cheery when we walked in

- him? He tried to talk to me once … but, well, I couldn’t talk to him

- why not?

- well … [a dismissive half-laugh] … it’s just pointless … he asked me “where are you from?” what sort of a question is that?

- but ... it’s a normal question to ask, it’s just a way of starting a conversation

- but what am I meant to say? I was born in London, lived in Norfolk, moved to Islay, moved to France, moved back to Islay … you can’t just answer a question like that

- but that’s why it would be an interesting conversation?

- [scoffing] well I can’t be bothered with it all

***

SCENE 2: an RSPB bird hide, Loch Gruinart, Islay

The same couple are sitting on a wooden bench, binoculars trained through the open observation window in front of them. On a bench bedside them, similarly focused on the wildlife outside, are two middle-aged men. The background noise is the unmistakable gaggling of geese.

At this time of year, over 40 thousand barnacle geese arrive from Greenland to over-winter on Islay – several thousand of them are in the shallows in front of the hide.

It’s cold – a sharp wind whistles through the open observation windows

One of the men nudges the other - they speak in broad Glaswegian accents;

- look, there

- where?

- where I'm looking ... past the second cluster of geese

- what're you seeing - the duck?

- aye, it's a gadwell - see the black tail

- you sure?

- aye, gadwell, nailed on - add it to the list

The second man puts down his binoculars and writes in his note book. The hide falls quiet, they all return to scanning the birds in front of them. The second man speaks;

- so these geese have just arrived from Greenland, aye?

- aye

- some journey they’ll have had, eh?

- aye

(pause)

- curlews man, I love curlews - they’re my favourite

- aye

- do they stay here all year?

- aye

(pause)

- it’s funny when you start thinking where birds come from

- how?

- well … we say the barnacle geese some from Greenland, but do the people in Greenland say the barnacle geese come from here?

- it’s where they breed but - so they come from Greenland

(pause)

- what about the cuckoo?

- eh?

- well the cuckoo’s a British bird, isn’t it?

-aye, they breed here

- but they’re only here for, like, three months… they spend most of the year in Africa

- so?

- well, if they spend most of their time in Africa, isn’t that where they come from?

His wife, without breaking her gaze through the window, kicks his foot

- Sorry - nothing - ignore me

***

Where am I from? I was moulded, forged and occasionally beaten into the person I am now mainly on Islay. So I'm from Islay, I'm an Ileach.

It was farm labouring on Islay - during holidays and briefly when I dropped out of school - that I learnt what a work ethic is, what hard work means. I tied fertiliser sacks round my legs and crawled on my hands and knees for days, hand-thinning turnips. I enjoyed the back-breaking satisfaction of manually cutting and stacking peat. I worked long hours in all weathers, experienced the relentless, unforgiving treadmill of dairy farming in the winter - 6am and 6pm milking times, 7 days a week.

My life now couldn't be much more removed from that of the island farmer, but that experience has stayed with me, is an important part of who I am.

Which is why a highlight of last weekend's trip was visiting the farming family who I worked with all those years ago. The father is now 88 years old, retired but full of life. The mother is as warm and welcoming as she was 35 years ago, as she was when she looked after me when I needed looking after. Their son, my friend, still farms - although the dairy herd has sadly long since gone, a victim of the inevitable economic disadvantage that island farmers face selling milk to the mainland.

Saturday, 11 November 2017

It's a while since I've posted on here - my day job sometimes has to be allowed to take over my life. One extracurricular thing I have found time to work on - very much in the spirit of this blog - is a forum called These Islands. I have agreed to Chair the organisation and we launched in London and Edinburgh a couple of weeks ago. For those interested the full text of the speech I gave at the launch events is up on the These Islands website and copied below.

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These Islands came about because a group of us were drawn together, first by a shared sense of frustration, but then by a shared sense of opportunity.

Through both the Scottish Independence and EU referendums we were frustrated with the poor quality of political debate and – particularly during the Scottish Independence referendum – we were disappointed with the lack of a well-articulated positive case for the United Kingdom. One of our Advisory Council members, Professor Nigel Biggar, sums this up rather well when he refers to the “faltering inarticulacy” of those trying to explain what the United Kingdom is good for.

But we recognised that this was at least in part because the white heat of a referendum campaign isn’t the time to start making what are often subtle, emotional and nuanced arguments – arguments that take time to develop, rehearse and share, and that need to be allowed to sink in to the wider public consciousness.

That’s when we stopped asking why others weren’t doing a better job of leading this debate, and started asking ourselves why we shouldn’t do it. That’s when our frustration turned to a sense of opportunity, when the idea for These Islands was born.

As an entrepreneurial businessman I’ve learnt to try and surround myself with people smarter than I am. By working with co-founders Tom Holland and Professor Ali Ansari, I had achieved that on day one – and together we set out to recruit an Advisory Council to help us.

We wanted to bring together a group who would represent all four nations of the UK and bring a wide variety of perspectives – including from outside the UK. We were overwhelmed with the response we received. As you can now see on our website, our advisory council of 33 members features not just some of the finest academic minds in the UK, but leading business people, representatives of multicultural Britain, great communicators, and passionate campaigners.

What you might notice missing from our advisory council is serving politicians. This was an explicit decision – the three peers we have on our Advisory Council are cross-bench peers. We made this choice because we believe we have to be above party politics, that this is a cause that needs to think beyond electoral cycles. The subject we’re dealing with here – the very future of the United Kingdom – is frankly too important to be left to politicians alone.

So how do we intend to harness the power of this group, what are our ambitions?

To capture this in a phrase: These Islands is a forum for debate which stands unabashedly for the view that more unites the people of the United Kingdom than divides them. In practice this means we want to stimulate and steer a positive national debate, something we aim to do initially through publishing a series of Briefings and Papers.

Briefings will be short, factual pieces, aimed at ensuring that any debate is well-informed. If you like, these will be our attempt to fight the tide of “fake news” and misinformation.

Papers will be more substantial and – critically – contributed to and peer reviewed by our advisory council. I’ve had the privilege of chairing three advisory council meetings to date and I can assure you: that process works.

The papers will be around three broad themes.

Firstly we aim to explore the Moral case. Many flinch at the use of the word “moral”, but we don’t think we should. Our first published paper – by Nigel Biggar, Regius Professor of Moral and Pastoral Theology at Christ Church, Oxford University – does an excellent job of confronting the moral question head on when it asks: What is the United Kingdom Good For? I urge you all to read it.

Secondly we want to discuss the Multicultural case. The United Kingdom has allowed four separate national identities not just to survive but to thrive within it. That is surely something to be celebrated. But beyond that, these islands have a proud history of welcoming immigration. Some of the strongest senses of British identity are to be found among the UK’s ethnic minorities. These plural or hyphenated identities – British-Asian, British-Muslim, British-Caribbean, British-European – stand testament to the fact that “Britishness” can be a truly multicultural form of identity. We think that’s a fact that’s worth recognising and celebrating.

Our third main theme is the Economic case. The order of these themes is not an accident. Too often the economic case is presented as somehow distinct from the moral and multicultural cases – as the rational case that stands apart from the emotional. The truth is that the economic case only exists because of the moral and multicultural cases. Our widely shared commitment to economic pooling and sharing is the practical manifestation of what might be termed an “implicit moral contract”: that wherever you live in the UK, wherever you come from, whatever your heritage, you should be entitled to certain standards of healthcare, of education, and of welfare. So while we will explore the economic practicalities of how our constitutional settlements work, we want to place this in a wider context, to make it about more than just “putting a pound sign in front of everything”.

There are other themes we’ll explore – how best to care for the wildlife of these islands, for example – but our three core themes will be moral, multicultural, and economic.

Finally, it’s worth adding that our approach is not one of uncritical cheerleaders for the United Kingdom, as defenders of the status quo. We recognise that the UK needs to continually evolve, that problems exist that need to be addressed, and that we have to react to the changing world around us.

So that is how we come to be here and broadly what we aim to achieve. But we will fail if we are not heard, if we don’t succeed in stimulating a quality debate. That is our challenge – and why we hope to engage the interest of opinion formers and thought leaders like many of you in this room.